Lawmakers voted to seal some search warrants in perpetuity, while keep gun permits open records

March 11, 2012|By Peter Dujardin pdujardin@dailypress.com757-247-4749

Each year in the General Assembly, there's a tug-of-war over the state's "sunshine laws."

The recent legislative session has been no exception. It wasn't the most eventful term in recent memory pertaining to open records and open meetings, but there were significant battles.

Among them: Should warrants used to track vehicles by GPS technology become public like most any other warrants are — or put in a special category and be sealed forever?

Should public boards be able to hold more "electronic meetings," whereby members are not sitting in the same place? Should the names and addresses of those who hold state permits to carry concealed handguns be shielded from public view?

Being that this is "Sunshine Week" — a nationwide event sponsored by newspaper editors to tout the merits of government transparency — the Daily Press is sharing some of the recent key developments.

GPS search warrants

In January, the U.S. Supreme Court ruled that it was improper to place a global positioning system (GPS) tracking device on a car without a warrant. The court ruled that placing such a tracker on a car is a "physical intrusion," and a "search" under the U.S. Constitution.

Police can follow someone's car all day long by driving behind them, the court ruled, but they need to prove probable cause if they want to surreptitiously attach a GPS device to your car.

Following that decision, the Virginia Association of Chiefs of Police asked Gov. Bob McDonnell to push for emergency legislation spelling out a new mechanism for law enforcement agencies to get warrants for GPS tracking investigations.

Under the bill, the warrant is to be served within 10 days of the search on the person whose car was tracked. Both prosecutors and defendants can ask the court to unseal the warrant and related documents.

But unlike most other search warrants — which under law typically become public records within days of the search — there's no mechanism in the bill requiring the GPS warrants to ever see the light of day.

Kent Willis, the executive director of the American Civil Liberties Union of Virginia, said his group lobbied hard for a warrant system after learning that police agencies — including in Fairfax County — were conducting warrantless tracking.

So Willis said he is glad the state has instituted a warrant system in line with the Supreme Court's recent ruling. "But in this otherwise good bill, we want these things unsealed," Willis said. "These warrants should be unsealed just as most other warrants are."

The Fourth Amendment's language barring unreasonable searches and seizures, combined with the practice of keeping warrants for searches open, "is a principle way we keep our criminal justice system fair and just," Willis said.

He argued that some warrants, such as some pertaining to national security, might be justified in becoming sealed, but most other warrants shouldn't be. "When the press is curious and has access to the warrants, we know what our law enforcement officers are doing," Willis said. "Anything that closes off this information concerns us."

Dana Schrad, the executive director of the Virginia Association of Chiefs of Police, said the GPS warrants often comes early on in an investigation, as opposed to a search warrant later in the investigation when detectives have already done much of their investigative work.

She said that such a time frame creates a greater likelihood that the person being searched may be innocent, and that it would be improper to have their movements revealed.

"We have to be sure to protect the privacy rights of the innocent," Schrad said. "I think we need to be very cautious under what conditions we (unseal them). There may be situations where they may need to be sealed indefinitely."

Lynchburg Commonwealth's Attorney Michael Doucette, the first vice chairman of the state's Commonwealth's Attorneys' Services Council, said many of the GPS warrants will eventually become public because prosecutors must get the documents unsealed before using the evidence in court.

"Any case in which a criminal charge is placed as a result of a GPS search warrant will be tried in open court before the public," he said.

But Doucette said he views GPS tracking as more akin to wiretapping and gathering certain phone call information than physically searching someone's house or car, which are more intrusive and more likely to be noticed by the target of the search. Wiretapping and phone record gathering, he pointed out, are typically approved using sealed court orders rather than traditional warrants.

The legislation was sponsored by Sen. Bryce E. Reeves, R-Spotsylvania, in the Senate and Del. David Albo, R-Fairfax, in the House. Their bills sailed through, carrying unanimously in both houses.

Willis said the emergency bill "had legs from the beginning" and took many people by surprise."I would not be surprised if this is revisited" in upcoming sessions, Willis said.